King v Clarke - [2022] NZHC 1649

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-000004

[2022] NZHC 1649

BETWEEN JODY DAWKIN KING and STEVEN ROSS LENNOX KING
Plaintiffs

AND

SHARON MAY CLARKE

Defendant

Hearing: 21 June 2022

Appearances:

D I Sheppard for Plaintiffs

D M Woodbridge for Defendant

Judgment:

13 July 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 13 July 2022 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date………………………..

KING v CLARKE [2022] NZHC 1649 [13 July 2022]

Introduction

[1] Jody King and Sharon Clarke are sisters.1 Sharon lives at the property at 3125 State Highway 1, Sanson.2 That property is owned by Jody and her husband, Steven King.

[2] Jody and Steven wish to sell the property. They seek, by summary judgment, an order for the recovery of possession of the property from Sharon.

[3] The property was previously owned by Jody and Sharon’s father. It was purchased by Jody and Steven from the father’s estate and in accordance with a deed of family arrangement.3 That deed was entered into by Jody, Sharon and their siblings to settle competing claims to the estate.

[4] Sharon has refused to vacate the property to enable it to be sold to a third party. Sharon says that there should be implied into the arrangements between she and Jody a term that Sharon should have the opportunity to purchase the Sanson property at or at about the same price as was paid by Jody and Steven. She says that her possession of the property should continue until she has had the opportunity to make the purchase. Sharon claims she has not had that opportunity because the price has increased.

[5] The critical issue I must determine is whether Jody and Steven have established that Sharon has no defence to their claim. Is there a tenable claim that a right to remain is to be implied into the DOFA and/or are Jody and Steven estopped from seeking the orders for possession?

Background

[6] The father, Noel Clarke, died on 22 August 2014. He was survived by his four children, Jody, Sharon, Hayley and John. Noel died leaving a will dated 9 August 1984, under which he gifted the whole of his estate to his four children in equal shares.

1      For ease of reference, I shall refer to them by their first names; no disrespect is intended.
2      The Sanson property.
3      DOFA.

[7] The trustee appointment provisions of Noel’s will failed because all of the proposed trustees pre-deceased him. Letters of administration were therefore granted, appointing each of his four children as co-administrators of his estate.

[8] The main assets of Noel’s estate were a 130-hectare farm in Apiti,4 the Sanson property, stock located at the Apiti farm, and plant and machinery that were located at both the Apiti farm and the Sanson property.

[9]Jody sought to purchase the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Clarke

Details

AGLC: King v Clarke [2022] NZHC 1649
Case: [2022] NZHC 1649
Decision Date: 13 July 2022

CaseChat Overview and Summary

Jody and Steven King sought summary judgment for possession of the Sanson property from Sharon Clarke, who has occupied it since 2006. Sharon contends that a term should be implied into the deed of family arrangement that she should be able to purchase the property at or at about the same price as was paid by Jody and Steven. She argues that her possession of the property should continue until she has had the opportunity to make the purchase. Sharon claims she has not had that opportunity because the price has increased. Sharon further contends that Jody and Steven are estopped from seeking the orders for possession. The court had to determine whether Jody and Steven had established that Sharon had no defence to their claim and whether a right to remain should be implied into the deed of family arrangement and/or whether Jody and Steven were estopped from seeking the orders for possession. The court concluded that Jody and Steven had established that Sharon had no arguable defence to the claim. The court found that the deed of family arrangement expressly contemplated that the Sanson property might be sold to a third party. It also provided that in the event that Jody did elect to purchase then she and Steven would become the registered proprietors and that Sharon’s interest would be protected by a mortgage. To now imply a term into the deed of family arrangement that Sharon can remain in possession and prevent a sale by Jody and Steven, well after the expiry of the 12-month period provided for in clause 5, contradicted the fundamental terms of these contractual arrangements. The court further found that Sharon had not established an arguable case of equitable estoppel. There was no arguable belief or expectation created or encouraged by Jody that Sharon would be able to purchase the property six years later at the price Jody paid in 2016 and to remain in possession until she could achieve that aim. The court granted summary judgment in favour of Jody and Steven and ordered that they recover possession of the Sanson property from Sharon. The court also made an order as to costs.

Orders